Trespass, in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a man’s person or to his property.

But the most obvious acts of trespass are – (1) trespass quare clausum fregit, ‘because he broke or entered into the close’ or land of the plaintiff; and (2) trespass de bonis asportatis, wrongful taking of goods or chattels. Here, we are concerned with the former, i.e. trespass to land.

To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of an enclosure is necessary.

Trespass may be committed (1) by entering upon the land of the plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole possession of the plaintiff, in each case without justification.

Entry is essential to constitute a trespass. A man is not liable for a trespass committed voluntarily, but he is liable if the entry is intentional, even though made under a mistake, e.g. if, in mowing in his own land, a man inadvertently allows his blade to cut through his neighbor’s field, he is guilty of a trespass.

But a person is not liable for trespass if the entry is involuntary, e.g. when he is thrown upon the land by someone else.

It is also possible that the defendant may successfully plead inevitable accident in his defense.

If a person, who has a limited right of entry upon land, exceeds that rights, he is a trespasser. If a man uses the land over which there is a right of way, for any purpose, lawful or unlawful, other than that of passing and re-passing, he is a trespasser.

If a person who has lawfully entered on the land of another remains there, after his right of entry has ceased, he commits trespass. A licensee whose license has been terminated or is extinguished by expiry can be sued as a trespasser if he does not vacate after request and lapse of a reasonable time.

Every kind of interference with the land of another, e.g. throwing stones or materials over a neighbor’s land, is deemed constructive entry and amounts to trespass. Deliberate placement of matter, e.g. jettisoning of oil, in such circumstances, as will carry it to the land of the plaintiff by natural resources, may constitute trespass. The matter may not be tangible; it may be gas or invisible fumes.

A trespass may be committed by driving a nail into a person’s wall, or by placing anything against his wall, or by shooting over his land, or by placing anything above and overhanging his land, or by planting trees in his land, or by placing chattel in his land, or causing any physical object or noxious substance to cross the boundary of his land.


Trespassers will be prosecuted


But trespass of the nature described above must be distinguished from private nuisance which resembles trespass.

The distinction is important because trespass is actionable per se whereas nuisance is actionable only on proof of damage. The distinction lies in the nature of the injury whether it is direct or consequential.

If the injury is direct, it is trespass; whereas, if the injury to the plaintiff is consequential it is a case of nuisance. If a person throws stones on the neighbor’s land, it is trespass. If the person plants a tree on his land the roots of which after some years undermine the foundation of the neighbor’s building, it is nuisance.

Discharge of filthy water on plaintiff’s land from a spout in defendant’s house is trespass.

The owner’s right to air and space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it. If a man were to erect a building overhanging the land of another, he would commit trespass and an action would lie against him.

Trespass by a man’s cattle dealt with similar to trespass committed by him. If a man’s cattle, sheep or poultry or any animal which the law gives him a valuable property trespass to another’s property, the owner of the animal is responsible for the trespass and consequential damage; unless he can show that his neighbor was bound to fence and had failed to do so. But if no such duty exists, the owner of cattle is liable for their trespass even upon unenclosed land, and for all naturally resulting damage.

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Die but don’t trespass


Distinction is also drawn between animals which from their natural tendency to stray and thereby do real damage, require to be and usually are restrained and animals like cats and dogs which are not usually confined. Owners of dogs and cats are not responsible for their trespass.

Support of land by land may be either i. The lateral support of land by adjacent land, or ii. The vertical support of the surface by the subsoil, where the property in the two is distinct.

Every proprietor of land is entitled to such an amount of lateral support from the adjoining land of his neighbor as is necessary to sustain his own land in its natural state, not being weighted by walls or buildings. This is a natural right.

The natural right does not extend to the additional support from a neighbor’s soil necessary for the maintenance of building; for one landowner cannot, by altering the natural condition of his land, or by erecting buildings thereon, deprive his neighbor of the privilege of using his land as he might have done before.


Trespass to goods is an unlawful disturbance of possession of the goods by seizure or removal or by a direct act causing damage to the goods, for example removing a tyre from a motor car, scratching the panel of a coach.

The plaintiff must at the time of the trespass have the present possession of the goods, either actual or constructive, or a legal right to the immediate possession.

A trespass to goods is actionable per se without any proof of actual damage.

A trespasser cannot by his trespass acquire the right of ownership in the property; such a possession cannot deter the real owner from taking back the property from the trespasser.


Note: Trespass has been one of the favorite areas for CLAT-setters. If you intend to do well in Legal Reasoning and CLAT, you must be well versed with ‘Trespass’.

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